4th Circuit challengers seek to join travel ban case

Posted Fri, February 23rd, 2018 10:38 pm by Amy Howe

This morning the Supreme Court released its April argument calendar, which includes oral argument in Hawaii’s challenge to the travel restrictions imposed on nationals from eight countries in President Donald Trump’s September 24, 2017, order. A few hours later, a second set of challengers asked the justices to join their case with Hawaii’s and consider yet another question in the dispute.

The petition for review filed today came from the International Refugee Assistance Project, a New-York-based human rights group. The group’s request is somewhat unusual, because briefing in the Hawaii case is well underway – indeed, the federal government had already filed its opening brief two days ago. In early December 2017, the justices allowed the September 24 order to go into effect while the federal government appealed rulings by federal district judges in Hawaii and Maryland that blocked the implementation of the ban. In those December 2017 orders, the justices indicated that they expected the courts of appeals to issue their decisions “with appropriate dispatch.” The U.S. Court of Appeals for the 9th Circuit issued its ruling upholding the Hawaii district court’s decision on December 22, and on January 5 the government asked the Supreme Court to weigh in – which it agreed to do two weeks later, on January 19.

When the justices granted review in the Hawaii case, they instructed the federal government and Hawaii to brief a fourth question not included in the government’s petition, but raised in Hawaii’s brief opposing review: whether the September 24 order violates the Constitution’s establishment clause, which (among other things) bars the government from favoring one religion over another. The 9th Circuit had not decided that question, ruling instead that the September 24 order exceeded the president’s powers under federal immigration laws. The establishment clause question was, however, one of the issues pending in IRAP’s case before the U.S. Court of Appeals for the 4th Circuit, which heard oral argument on December 8 but did not issue its decision until last week.

In an opinion issued on February 15, the 4th Circuit upheld the Maryland district judge’s ruling, holding that the September 24 order likely violates the establishment clause. In the brief filed today, IRAP urged the justices to take its case and consolidate it with Hawaii’s to review the lower court’s holding that the order could be enforced for individuals who lack a genuine relationship with a person or entity in the United States. Moreover, IRAP added, its case is the better one in which to review the establishment clause question, because the lower courts made findings and analyzed the issue in detail.

In a separate motion filed alongside its petition for review, IRAP asked the justices to act quickly, by ruling on its motion to expedite the briefing schedule by Monday and – if the motion is granted – ordering the government to respond by Wednesday, February 28. That would allow the justices to consider IRAP’s petition at their private conference on March 2, just one week from now.

On Friday the justices will meet for their March 23 conference; our "petitions to watch" for that conference will be available soon.

Major Cases

Trump v. Hawaii(1) Whether the respondents’ challenge to the president’s suspension of entry of aliens abroad is justiciable; (2) whether the proclamation – which suspends entry, subject to exceptions and case-by-case waivers, of certain categories of aliens abroad from eight countries that do not share adequate information with the United States or that present other risk factors – is a lawful exercise of the president’s authority to suspend entry of aliens abroad; (3) whether the global injunction barring enforcement of the proclamation’s entry suspensions worldwide, except as to nationals of two countries and as to persons without a credible claim of a bona fide relationship with a person or entity in the United States, is impermissibly overbroad; and (4) whether the proclamation violates the establishment clause of the Constitution.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin's redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin's redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court's test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of March 23, 2018

Johnson v. Stinson Whether Johnson v. Jones precludes a federal appellate court from exercising jurisdiction over a challenge to a denial of qualified immunity that turns not upon disputed facts, but upon the disputed application of the inferences drawn by the district court from the facts, in concluding that a reasonable jury could find a violation of a constitutional right which was clearly established; and (2) whether the U.S. Court of Appeals for the 7th Circuit, sitting en banc, applied an impermissibly broad reading of Johnson v. Jones in vacating the opinion of the U.S. Court of Appeals for the 7th Circuit's three-judge panel and denying jurisdiction over Dr. Lowell T. Johnson's appeal, where the appeal sought review of the district court's determination that a reasonable jury could find that Dr. Johnson violated respondent's right to due process.